Conrad A. Falvello, Anthony C. Falvello, Hazleton, for appellant.
Joseph J. Marticelli, Louis Geo. Feldmann, Hazleton, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 175 Pa. Super. Page 581]
In this divorce action, the master recommended that the plaintiff-husband be granted a divorce on the grounds of cruel and barbarous treatment and indignities. From the dismissal of her exceptions to the master's report by the court en banc of Luzerne County the defendant-wife has appealed to this Court.
Plaintiff, 31 years of age at the time of the hearing, and defendant, then 29, were married on September 11, 1950, and have one child, a son, born April 21, 1951. They lived with defendant's father and brother in McAdoo for a period of about nine months after their marriage, then moved to Freeland. Marital difficulties beset them from the outset and a series of temporary separations ensued, which culminated in final separation on Thanksgiving Day 1951.
[ 175 Pa. Super. Page 582]
The parties themselves and plaintiff's father were the only witnesses, and much of the testimony is contradictory.
We have examined the record and have arrived at our independent conclusion, as is incumbent on us in divorce cases. Lupowitz v. Lupowitz, 169 Pa. Super. 581, 83 A.2d 501; Cowher v. Cowher, 172 Pa. Super. 98, 91 A.2d 304, and find that plaintiff has not sustained the burden of proving such course of treatment on the part of defendant as endangered his life or rendered further cohabitation unsafe. Edelman v. Edelman, 165 Pa. Super. 485, 69 A.2d 165. Hence we confine our consideration solely to the charge of indignities.
The essential feature of the offense of indignities to the person, within the meaning of our Divorce Law, Act of May 2, 1929, P.L. 1237, sec. 10, as amended, 23 P.S. § 10, is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome. Martin v. Martin, 154 Pa. Super. 313, 317, 35 A.2d 546; Kobryn v. Kobryn, 174 Pa. Super. 472, 102 A.2d 173. To prevail plaintiff must sustain the burden of proving not only that defendant by a course of conduct rendered his condition intolerable and life burdensome, but also that he was the innocent and injured spouse, Wilson v. Wilson, 163 Pa. Super. 546, 63 A.2d 104; Matovcik v. Matovcik, 173 Pa. Super. 267, 270, 98 A.2d 238, and such proof must be based on a preponderance of clear and satisfactory evidence. Orsuto v. Orsuto, 171 Pa. Super. 532, 91 A.2d 284.
Plaintiff testified that 'the start of the trouble' occurred in October 1950 (a month after the marriage) when he was attending a cabinet school (a 'G.I. school'). ...